Board of Drainage Com'rs of Drainage Dist. No. 10 of Bolivar County v. Board of Drainage Com'rs of Washington County

• Decision Date: 29 January 1923
• Docket Number: 23186
• Citation: 95 So. 75,130 Miss. 764
• Parties: BOARD OF DRAINAGE COM'RS OF DRAINAGE DIST. NO. 10 OF BOLIVAR COUNTY et al. v. BOARD OF DRAINAGE COM'RS OF WASHINGTON COUNTY et al
• Court: Mississippi Supreme Court

95 So. 75

130 Miss. 764

BOARD OF DRAINAGE COM'RS OF DRAINAGE DIST. NO. 10 OF BOLIVAR COUNTY et al. v. BOARD OF DRAINAGE COM'RS OF WASHINGTON COUNTY et al

No. 23186

Supreme Court of Mississippi

January 29, 1923

APPEAL from chancery court of Washington county, HON. E. N. THOMAS Chancellor.

Suit by the Board of Drainage Commissioners of Washington County and others, against the Board of Drainage Commissioners of Drainage District No. 10 of Bolivar County, Mississippi, and others. From a decree overruling demurrers, defendant appeal. Reversed, and bill dismissed.

Decree reversed and bill dismissed.

Roberts & Hallam, for Appellant.

THE CHANCERY COURT OF WASHINGTON COUNTY, MISSISSIPPI HAD NO JURISDICTION OF THIS SUIT. This court has held that a drainage district organized under chapter 195 of the Laws of 1921, as amended by chapter 269 of the Laws of 1914, is a body politic and corporate; Atchafalaya Drainage Dist. v Nicholson, 89 So. 619, and that it is an involuntary public corporation. Stevens v. Beaver Dam Drainage Dist., 86 So. 641.

It is therefore apparent from these decisions, and from the foregoing allegations of the amended bill, that the appellant drainage districts, and each of them, are municipal or public corporations exercising the functions of government in Bolivar county, Mississippi, the place of their creation, and that they must, necessarily, have their situs and domicile in that county. This being true, we assert that all suits and actions of whatever nature against either or all of said drainage districts must be instituted in the county of Bolivar, Mississippi, and that the courts of no other county have jurisdiction over them. We cite below authorities which hold that it is the general rule that actions against municipal or public corporations are strictly local under the general rule of public policy. 19 R. C. L., Title "Municipal Corporations," sec. 338, page 1049; 28 Cyc., Municipal Corporations, page 1759; 14 Encyclopaedia of Pleading and Practice, at page 228; Phillips v. Baltimore, reported in 25 L. R. A. (N. S.) at page 711; Nashville v. Webb, reported, in 114 Tennessee, at page 432; 4 Ann Cas. 1169; Leigh County v. Klecker, 5 W. & S. (Pa.) 181, 186, 188; Oil City v. McAboy, 74 Pa St. 249, 252; Pack v. Greenbush Tp., 62 Mich. 122 28 N.W. 746; Potts v. Pittsburg, 14 W. R. C. (Pa.) 38; Townsend v. School District, 12 N. J. L. 312; Pack v. Greenbush Tp., 62 Mich. 122; Johnston v Cleveland County, 67 N. Car. 101; Alexander v. McDowell County, 67 N. Car. 330; Steele v. Rutherford County, 70 N. Car. 137; Jones v. Statesville, 97 N. Car. 86; Jones v. Bladen County, 69 N. Car. 412; Oil City v. McAboy, 74 Pa. St. 249; St. Francis Levee District v. Bodkin, 108 Tenn. 700; Lehigh County v. Kleckner, 5 W. & S. (Pa.) 181; Heckscher v. Philadelphia (Pa. 1887), 9 A. 281; Osgood v. Lynn, 130 Mass. 335; Buch v. Eureka, 97 Cal. 135; Schuyler County v. Mercer County, 9 Ill. 20; Ex rel. Johnson, et al. v. District Court, etc., 120 Minn. 458; Pack v. Township of Greenbush, 62 Mich. 122, 28 N.W. 746; Jones v. Statesville, 97 N.C. 86, 2 S.E. 346; Oil City v. McAboy, 74 Pa. St. 249; North Yakima, v. (460) Superior Court of King County, 4 Wash. 655, 30 P. 1053; Fostoria v. Fox, 60 Ohio St. 340, 54 N.E. 370; Heckscher v. Philadelphia, 9 A. 281; R. L. 1905, pp. 4089, 4090, 4091, 4092, and 4094.

Furthermore, section 4095, has no bearing upon the character of such an action, for under the same the venue in an action against a municipality may originally be laid in the county in which the municipality is situated, no matter how many individual defendants there may be. The venue, when so laid, however, would be subject to change under section 4095, if such section applies to an action to which a municipality is a party defendant, and this is the ultimate question to be determined in this case. We do not think this section so applies, for, as we have stated above actions against municipalities must still be regarded as local. 32 L. R. A. 595, 601; 43 Am. St. Rep. 134, 139; 3 Dunnell (Minn.) (461) Digest, 8958; Phillips v. Baltimore, 110 Md. 431, 72 A. 902; 25 L. R. A. (N. S.) 711; Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 4 Ann. Cas. 1169.

We cite especially and call to the court's attention the case of Parks Company v. City of Decatur, Ill, decided by the circuit court of appeals for the sixth circuit of the United States, and reported in 138 Federal Reporter at page 550. In that case, that court (being held by Justice LURTON and Judge SEVERANCE), held flatfootedly that a municipal corporation was not suable by attachment in the courts of another state.

APPELLANT DRAINAGE DISTRICTS HAVE A RIGHT TO DRAIN THEIR SURFACE WATERS INTO A NATURAL WATER COURSE REGARDLESS OF THE FACT THAT SUCH SURFACE WATER WILL OVERTAX THE CHANNEL CAPACITY OF THE STREAM. 27 R. C. L., under the head of "Waters," page 1156, section 81; Pack v. Harrington, 109 Ill. 611, 50 Am. Rep. 627; Fenton, etc. Co. v. Adams, 221. Ill. 201; Peck v. Herrington, 1 A. L. R. 171; Vannest v. Fleming, 79 Ia. 638, 18 A. S. R. 387; 8 L. R. A. 277; Martin v. Schwertley, 155 Ia. 347; 40 L. R. A. (N. S.) 160; Dorr v. Zimmerman, 127 Ia. 551, 103 N.W. 807; Hull v. Harker, 130 Ia. 190, 106 N.W. 629; Baldwyn v. Ohio Tp., 70 Kan. 102, 109 A. S. R. 414; 67 L. R. A. 642; Hooper v. Wilkinson, 15 La. Ann. 407, 77 Am. Dec. 194; McCormick v. K. C. St. J. & C. B. R. R. Co., 70 Mo. 359, 35 Am. Rep. 431; Kaufman v. Greisemer, P. St. 415; and Waffle v. N.Y. Central, 59 Barb. 413; Waffle v. N.Y. Central, 53 N.Y. 11, 12 Am. Rep. 467. The case of Noonan v. City of Albany, 79 N.Y. 470, 35 Am. Rep. 540, so much relied on by appellee does hold that one can not, under circumstances, drain his surface waters into a natural watercourse, regardless of the damage done to a lower proprietor, but that case merely involved the obstruction of a natural watercourse by the upper proprietor, as well as the pollution thereof by draining sewage therein which was deposited on the land of the lower proprietor. All else in the case was dicta. This view is concurred in by the author of the note appended to that decision at page 542 of 35 Am. Rep., where it is said, referring to the Noonan case--

"This appears to be a clear case of negligent interference with a natural stream, and what is above stated, in regard to a private riparian proprietor may be obiter, although it is probably the law." McCormick v. Horan, 81 N.Y. 86, 37 Am. Rep. 479, was a suit by an upper proprietor for damming by a lower proprietor of the channel of a natural watercourse to the damage of the upper owner, the plaintiff having drained water accumulating in an excavation made for guarry purposes on his land into the watercourse. The court held that the upper proprietor had the right to so drain, and that the lower owner had no right to dam the channel. But in accordance with our view that the great majority of the cases cited in support of the proviso are dicta, the court there unnecessarily said. "This right is subject to the qualification that one owner cannot, by artificial arrangements on his land, concentrate and discharge into the stream surface water in quantities beyond the natural capacity of the stream, to the damage of other owners," citing Noonan v. City of Albany, supra.

In Staton v. Norfolk, etc. R. R. Co., 111 N.C. 278, 16 S.E. 181, 17 L. R. A. 838, the proviso is not supported. The court there seems to hold that the defendant had by means of ditches, diverted into a stream, surface waters which would not naturally drain in that direction. Mizell v. McGowen, 129 N.C. 93, 39 S.E. 729; 85 A. S. R. 705, utterly repudiates the qualifying proviso. Mason v. Fulton County Commissioners, 80 Ohio St. 141, 88 N.E. 401, 131 A. S. R. 689; 24 L. R. A. (N. S.) 903, holds that an upper proprietor's land which has been drained by means of artificial drains into natural watercourses is not chargeable with an assessment along with the lands of lower proprietors made for the purpose of raising funds with which to dig a ditch or an improvement on the lower lands to prevent overflow from the watercourse to the damage of lower lands. The case, however, approvingly cites Mizell v. McGowen, 129 N.C. 93, 85 Am. St. Rep. 705, 39 S.E. 729. The cases in the note to the Mason case in 24 L. R. A. (N. S.) cited in support of the quotation are Noonan v. Albany, 79 N.Y. 470, and Hicks v. Owensboro, 6 Ky. L. Rep. 225.

In the case of Miller v. Laubach, 47 Pa. St. 154, 86 Am. Dec. 521, the facts were that defendant, by means of a drain or ditch, drained a marsh and emptied the waters from the marsh onto plaintiff's land. There was no question about the right to overflow a natural watercourse. Rhoades v. Davidheiser, 133 Pa. St. 226, 19 A. S. R. 630, had to do with the obstruction by the upper proprietor, the defendant, of a natural watercourse on his own land, and the diversion of the water by means of ditches to and upon the land of the plaintiff, the lower owner, to the injury of the latter. No question of the right to overcharge a natural channel arose therein.

In Meixell v. Morgan, 149 Pa. St. 415, 34 A. S. R. 614, all that was there held was that the upper proprietor had the right by means of underground and artificial drains, to collect surface water on his land and discharge it upon the land of the lower proprietor at a single point which is the natural watershed of both tracts, and at which there is an open ditch on the lower land, although a larger quantity of water is thus discharged at that point than would naturally flow there by surface drainage, provided care is taken not to do unnecessary injury to the owner of the lower land. Overflowing a natural watercourse was not considered. Shaw v. Ward, 131 Wis. 646, 111 N.W. 671, 11 Ann Cas....